William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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in good faith, fides servanda is a rule equally enforced at law
and in equity (a).

A mere false assertion of value, when no warranty is intended,
is no ground of relief to a purchaser, because the assertion is a
matter of opinion, which does not imply knowledge, and in which
men may (ffffer. Every person reposes at his peril in the opinion
of others, when he has equal opportunity to form and exercise
his own judgment, simplex commendatio non obligat (6). If the
seller represents what he himself believes as to the qualities or
value of an article, and leaves the determination to the judgment
of the buyer, there is no fraud or warranty in the case (c). An
assertion respecting the article sold, must be positive and un-
equivocal, and one on which the buyer places reliance, in order

(a) 1 Fwnb. TV. of Equity, 371, 372.

(h) Harvey v. Young, Yelv. Rep. 21. Bailey v. Merrell, 2 BuUi. Rep. 94.
Cro. Jac. .386. Davis v. Meeker, i Johns, Rep. 354. Manshall v. Peck, 1
Dana' 8 Ken. Rep. 611.

(c) Jendwine v. Slade, 2 Esp. Rep. 572.

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♦ 487 OF PERSONAL PROPERTY. [Part V.

to amount to a warranty; and if the vendee has an opportunity

of examining the article, the vendor is not answerable
[ *486] *for any latent defect, without there be fraud, or an

express warranty, or such a direct representation as
is tantamount to it (a). The cases have gone so far as to
hold, that if the seller should even falsely affirm, that a par-
ticular sum had been bid by others for the property, by which
means the purchaser was induced to buy, and was deceived as to
the value, no relief was to be afforded ; for the buyer should have
informed himself from proper sources of the value, and it was his
own folly to repose on such assertions, made by a person whose
interest might so readily prompt him to invest the property with
exaggerated valua Emptor emit quam minimo potest ; venditor
vendit quam maximo potest (6).

The same principle was laid down in a late case in the K, B.,
where it was held (e), that a false representation by the buyer
in a matter merely gratis dictum^ i n respect to which the buyer
was under no legal pledge or obligation to the seller for the pt-«9-

cise accuracy of his statement, and upon which it was
[ * 487 J the seller's own indiscretion to rely, was *no ground of

action. There was no recognized principle of law which
rendered a party legally bound to allege truly, if he stated at all,
the motives and inducements to the purchase, or the chances of
sale to the seller. The true rule was stated to be, that the seller
was liable to an action of deceit, if he fraudulently misrepresent
the quality of the thing sold, in some particulars which the buyer

{a) The Oneida Mannfactaring Society v. Lawrence, 4 Cowen^a Rep. 440.

(h) 1 Rot. Ahr. 101, p!. 16. In the case of Leakfns v. Clissej^ 1 Sid. Rep.
146. 1 Lev. Rep. 102, the same law was declared; but a distinction was there
taken between the false assertion touching the value of the property, and
touching the rate of the previous renl; /or the rent was of a matter of fact
resting in the private knowledge of the landlord and his tenants, and the
tenants might refuse to inform the purchaser, or combine with the landlord
to mislead him. The court, in Lysney v. Selby, 2 Lord Raym. 1118, followed
the decision in Leakins v. Clissel. though they considered it to be question-
ble; and the distinction seems to have been essentially disregarded in the
Hcotch case of Kinaird «. Lord Dean, cited by Mr. Sngden, from 1 Ck^ff. of
Dccif*. 332. The doctrine in the case of Rolle was recently adopted by the
chief justice of Maine, in the case of Cross r. Peters, 1 Greenleafa Rep. 389;
and by the chief justice of North Carolina, in the case of Pagan v. Newaon,
1 Badg. dt Dev. 22. But in Bo wring r. Stevens, 2 Carr, dt Pnyne^ 337, on the
sale of a lease of a public house, the seller falsely represented that his returns
averaged so much a month; and it was held that an action lay for the deceits

(c) Vernon r. Keys, 12 EobCb Rep. 632.



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Ijev. XXXIX.] OP PERSONAL PUOPfiRTV. * 487

'Las not equal means of knowledge with himself (a); or if ho do
80 in such a manner as to induce the buyer to forbear making the
inquiries, which, for his own security and advantage, ho t^oold
otherwise have made (6).

The rule in equity is more rigid on this subject than it is at law.
Lord Hardwicke held (c), that where the seller had falsely affirmed
a farm to have been valued by two persons at a certain price, and
that assertion had induced the purchaser to contract, it Was such
a misrepresentation us would induce a court of equity to with-
hold a decree for a specific performance. But there Is a settled
distinction in equity between enforcing specifically and rescind-
iug a contract; and an agreement may not be entitled to be en-
forced, and yet not be so objectionable as to call for the ex-
ercise of equity jurisdiction to rescind it. It does not follow
that a contract of sale is void in law, merely because equity will
not decree a specific performance {d).*^

(a) A false representation in a contract for the sale of fixtures and fittings
of a public house as to the amount of hnsine^ attached to the house, has
been keld sufficient to avoid the contract. Hutchinson v. Morley, 7 Scoti,

:m, %

{b) It is settled that a material misrepresentation of a fact by miRtakr, and
upon which the other party is induced to act, is a ground for relief in equity,
equally as if it had been a wilful and false assertion, for it operates witli
r<iual injury. Pearson t». Morgan, 3 Bro, .'^88. M'Ferran r. Taylor, li Croiirh^
270. Rosevelt v. Fulton, 2 Coitwn, 134. Lewis v. M^Lemore, 10 Ycrger, 2i\Ci.

(o) Buxton r. Lister, 3 Aik. Rep. 386.

\d) Seymour f. Delancy, 6 Johns, Ch. Rep. 222. The cases on this point
are there collected and reviewed. Though the decision in that case wa.s
afterwards reversed in the court of errors, the general doctrines in it were
not afi*ected, but admitted. Inadequacy of price is of itself a sufficient ground
of defence to a bill in equity by a purchaser, for a specific performance, when
the party contracting to sell, was an expectant heir. Peacock r. Evans, 16

*^ Misrepresentations of value become material in resisting specific perform-
ance. Tyler v. Black, 13 Haw. (U. 8.) 231; Spalding v. Hedges, 2 Barr.
2^0; Best v. Stow, 2 Sand. Ch. 298.

Where there is fraud equity will grant relief either when the fraud con-
Hists of a positive misrepresentation cr where there is a wilAil concealment
of fact. Torry v. Buck, 1 Green. Ch. 366; Smith v. Richards, 13 Peters, 26,

If the misrepresentation is made ^vith the intention to deceive the other
party it will vitiate the transaction. Harding v. Randall, 15 Me. 33'2: Reese
r. Wyman, 9 Ga. 439; Taymon v. Mitchell, 1 Md. Ch. 496; Hough r. Richard-
son, 3 Story, 659. It is the duty of the party to know the truth; a misrep-
resentation is presumed to be fraudulent. Bigelow on Fraud. 56 rl neq.

In Redgrave v. Hurd, 20 Ch. D. 1, Brett's Leading Equity Cases, 311
(Text Book Series), it was held that where a contract is induced by a mate-
rial representation which is untrue, it is no defence to an action for re.scis-
sion that the party to whom the representation was made had the means of
discovering, and might with due diligence have discovered its untruth, and
that he made a cursory and incomplete inquiry into the fact."*. See hereon
T^ake on Contracts, 188: I^we r. Trundle, 78 Va. 65; York r. Gregg, 9
Texas, 85; Thompson p. I^e, 31 Ala. 292; Oswald r. McGehee. 28 Miss. 340.

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* 4SS OP PERSONAL PROPERTY. [Part V.

[ *488 ] ^An aeiioQ will lie a^^ast a person not iateresUMl in
the property, for making a false and frandulent repre-

_ 8 * «

Prurf, 512. Ryle r. Brown, 13 Price's Exc. Rep. 738. On the other hand, a
a court ofeqnity will rescind a contract for the sale of land when the in-
trinsic nature and subject of the barg;ain itself, or the attending circum-
^tam^es^ are clearly indicative of fraud. King r. Cohorn, 6 Yerper^a Tenn. Brp.
75. So, a bill for the pesciasion of a contract for the purchase of land will be
unstained, if the defendant fails at the hearing to show that he is then able
t-> give a giHid title, or to give possession. Williams r. Carter, 3 PannU AVit.
H. 199. Seamore r. Harian, Ilrid. 412. In the case of King v. Hamilton, 4
P^/ft'*^ r. S. Rep. 311, it was adjudged, that the equity power of decreeing
a specific performance of contracts, was to be exercised in sound discretion,
and nith an eye to the substantial justice of the case, and never when the
exerrt^ of it would be inequitable uid unjust

The general rale is. that a court of chancery will not decree a specific per-
lorm.nnce of an agreement for the sale and purchase of dock or of ckaitelst. Bnt
1 herv> are so many except ions and qualifications attending the rule, that its fon*e
i< greatly impaired, and the more recent and better anthority would seem to
be. th;it trhen justice requires it, chancery will, in such cases, decree a spe-
riao performance. For the general rule, see Cudd r. Butter, 1 P. IVmK 570.
5 174^'* Rfp. 5:1^. Cupper r. Harris. Bumb. Rep. 135. Dorson r. Westbrook,
5 I'tmrr't Rep. 540. Nu thorn r. Thornton, 10 rrairy, 159. For exceptions to
it. and in favor of specific performance, see Colt r. Netterville, 2,i*. IVms, 304.
Fhike of St>merset r. Cooksod; 7rf. 390. Buxton v. Lister, 3 Atk. Rep. 38:J.
Ta\Ior r. NeviUe, Ibid. 3^. Lord Eldon, in Lady Arundel! v. Phippa, 10
i;Vf. 14Sw Wright r. Bell, 5 Ptiee\^ Ejcc. Rep. 325. Adderley v. Dixon, I
^s.«o»« <£• Simitrt. tjiC Wiliiy r. Cottle, 1 J bM. 174. The true principle in
ei'/,iity is. tliat specific pertbrmance of an agreement lelating to chattels, onicht
to be decreed, when equity and conscience require it, as in the case of pictures
ami other things of a peculiar value and attachment, and when the remedy
hv act:«Hi at law for damages would be inadequate, and no competent and
nUs relief could otherwise be afibrded. Mlifordon Pleadingi in, Chitncery^ 168.
e^iit. N. Y. iSvi. :5f0ry'« Oamm. oa Eq. Jmritpnuience, vol. ii. 18, 26 — 18, where
the Ec^' ijh chancery cases on the subject, axe critically examined. In Sarter
r. Gx^rxiou, di»mes4ic $!aves brought up in the family are declared to come
«i:hin the rea:on of the exception. 2 Hiirs S. C. CA Rep. 126, 127. As to
tht» tpe^'irk- pertormance of contrscts lor the sale oUamds^ see tnprtk, p. 470 —
4Tix ii:d mow' pariiouLiriy. imfm^ vol. iv. p. 451. With respect to contracts
er:«^:y^i into for fraudulent or illegal purposes, the law refuses its aid to en-
able e;th<^r pttrty to disturb such parts of it as have been execuied^ and as to
s::oh pArt$ as remain eservtory, it leaves the parties where it finds them.
N< :s r. r.trk. ^^ HVWW/. 24.

Tbe cji^ of marine insurance isdiflfeient from the ordinary contract of sale.
a:Ht rvs:s ou a di f.'erent pri ncipie. The parties do not deal in that instance on the
ivv-^x:n\i^; v^ oi' e^ual knowledge and vigilance as to the subject matter of
t:>f oi>* :;^% ami hence a different nale of law prevails. The insurer is es-
^r> VA^.y (^?«£'v, and is known to act, and professes to act, upon the infor-
rM-.xv; W the assun^L In an insurance contract, the special facts, as Lord
Ma-^^.^" d has oUj^rved. -OtrteT r. Boehm, 3 Bmrr. Rep. 19a5,) upon which the
*\ r! r.j^'rt ch*nce is to he computed, lie most commonly in the knowledge
o," tl^T u*.xu:v^l or\v. *' TV mmd^nrriier trtuiis to ki* reprexemMiom,^* and pro-
tv^xis u;vs» <\^r.x?e -ice that he d^^es not keep hack any circumstance in his
k-.^T^ Vv^iT. l.::V»«rnjiu r. DesU^rough. 8 finntv. «^ Cre^ 386. Though the
xui^.vvsg«v« sKvria hAp{*n through mistake, without any fraudulent inten-
t5>v, the ixv.ov is vyv.d. TJje o>n tract of insoram^ is formed upon principles
\^'«':Ar l»» its^-M* . a:^'l the i^ai'non law maxim t*fe»retti emptor has no appli*
!ti:N*n. Acd prv^'V'-U^ to hjive n*>ne. So. in the case of work done and articles
Wkule bx a mev haaK\ ihe buver profeses to repose upon the superior knowl-



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Lee. XXXIX. 1 OF PERSONAL PKOPERTY . ♦489

mentation *to ibo seller, whereby he sastained damage [ * 489 ]
by tmsting the purchaser on the credit of such misrep-
resentation (a). This principle was first established in England,
after great diacnssion and opposition, in the case of Paaley v.
Freeman (6); and though that case met with powerful resistance,
it has been repeatedly recognized* and the doctrine of it is now
well settled, both in the English and American jurisprudence (c).
The principle is, that fraud, accompanied with damage, is a good
cause of action (d); and the solidity of the pnnciple was

edge and skill of the mechanic in his trade, and to know nothing of the
mystery of the art; and if the latter does not famish his work done in »
workmanlike manner, he is guilty of a breach of an implied contract; sp^ndei
perUiHin nrfin. Jones i». Bright, cit«tl in 1 Dawson dt Llaydy 304. The reason
of the distinction between these cases and the ordinary contract of sale, is
very apparent; and the common law has carried the doctrine of disclosnres
by each party in the formation of the contract of sale, to every reasonable
and practicable extent that is consistent with the interests of society. The
maxim ofv^reai emptor, and that other maxim, tiffilatitibua et non (formi^ntibtis
Jura ftHbreniunt, when discreetly applied, as in the English law, are replete with
sound and practicable wisdom.

in) Upton V. Vail. 6 Johtis. Rep. 181. Bean v. Herrick, 3 Fairfield, 262. In
the case in 6 Johns, Rep., the doctrine of the case of Pasley v. Freeman, was
recognized, discussed, and settled in the supreme court of New York. It was
again recognized, discussed, and settled, in Gallagher r. Brnnel, 6 Coxven'n
Rep. 346: and once more recognized, discussed, and settled, in Benton v.
Pratt, 2 WendelVs Rep. 385; and again, and very elaborately and powerfully
enforced, in Allen r. Addington, 7 WendeWn Rep. 1 S. C. 11. Ibid. 374. This
18 a striking sample of what are termed the homonymias of the civil law. But
the statute of 9 Geo. IV. ch. 14, commonly called Lord Tenterden^s act, has
done away the application of the doctrine of Pasley v. Freeman to English
cases. That act extends the statute of frauds, by requiring a memorandum in
writing signed by the party to be charged, of representations of another's
character and ability, with a view to credit to be given him. It equally ap-
plies to cases of verbal acknowledgments of debts barred by the statutes of
limitations; and it wonderfully relieves the courU, the profession, and the
country, from the evils of fluctuating and contradictory decisions. These
provisions of the English statute were adopted in the Massachusetts Remsed
SttUtttes for 1835.

(b) 3 Term Rep. 51.

\c) Eyre v, Dnnsford, 1 East's Rep. 318. Haycraft v. Creasy, 2 Ibid. 92.
('arr, ex parte, 3 Ves, A Bea. 110. Earner v. Alexander, 5 Bos. A Pull. 241.
Wise r. Wilcox, 1 Dnff's Rep. 22. Russell v. Clark, 7 Cranch's Rep. 92.
Munro r. Gardner, 1 M. Con. Rep. 8. C. 328. Hart v. Tallmadge. 2 Day's Rep.
.381. Patten v. Gmney, 17 Mass. Rep. 182.

(d) Fraud without damage, or damage without iVaud, says Croke, J., in 3
Bulslrwle's Rep. 95, gives no cause of action; but where these two do concur
and meet together, there an action lieth. By fraud, Le Blanc. J., said, in 2
East's Rep. 108, he understood an intention to deceive, whether from an ex-
pectation of advantage to the party himself, or from ill-will towards the other.
Both of these propositions contain true doctrine on the point. If the false repre-
sentation be made, knowing it to be false, and injury follows, the law infers
u fraudulent intent, and the person who makes it is responsible for the con-
sequences. Tindal, Ch. .7., in Foster v. Charles, 6 Bingham, 390. 7 lb. 105.
This appears to be the sound doctriife and the wholesome discipline of tb«
law ou the point.



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* 490 OP PERSONAL PROPERTY. [Part V

[ * 490 ] *feit and acknowledged by the writers on the civil law(a).
Misrepresentation, without design, is not sufficient for
an action. Bat, if recommendation of a purchaser, as of good
credit, to the seller, be made in bad faith, and with knowledge
that he was not of good credit, and the seller sustains damage
thereby, the person who made the representation, is bound to in
demnify the seller (6). It is a very old head of equity, said
Lord EJdon (c), that if a representation be made to another per-
son, going to deal in a matter of interest upon the faith of that
representation, the former must make the representation good if
he knew it to be false.^



(a) Dig, 50, 17, 47. (b) Pofhier, Traile du Contrat de Mandal. art. 21.

(c) Evans v. Bicknell, 6 Ve9ey, 182.

^An actit^n for deceit lies against one who makes a false representation of
a material fact susceptible of knowledge, knowing it to be false, or as of his
own knowledge, when he does not know whether it is true or false, with in-
tention to induce the person to whom it is made, m reliance upon it, to do
or refrain from doing something to his pecuniary hurt, when such person
acting with reasonable prndence, is thereby deceived and indu<^ to so do,
or refrains, to his damage. Busterud v. Farrington, i<6 Minn. 3*20.

Tlie representation must be false when made. Corbett r. Gilbert, 24 Ga.
454; Reeve v. Dennett, 145 Mass. 23. The falsity may be either the sup-
pression of the truth or the assertion of a falsehood. Allen r, Addington. 7
Wend. 9; Bokee r. Walker, 14 Pa. St. 139; Khe«n r. Naugatuck Wheel Co ,
.33 Pa. St. 358; Boyd's Executors r. Browne, 6 Pa. St 310; Chisolm v. Gad:*-
den, 1 Strob. 220. It must also be of a fact Ins. Co. r. Reed, 33 Ohio 8t
283; Bnschman r. Codd, 52 Md. 202; Fulton v. Hood, 34 Pa. St 3S5; Gor-
don P. Butler. 105 U. S. 533; Tuck v. Downing, 76 111. 71; Sievekingp. Litr-
ler, 31 Ind. 13; Belcher r. Costello, 122 Mass. 189, Crown r. Carriger, 66 Ala.
SJX); Starr v, Bennett, 5 Hill, 303; Marsh v. Falker, 40 N. Y. 562; Lyons r.
Briggs, 14 R. I. 222; Hickey v. Morrell, 102 N. Y. 454; Jude p. Woodbani,
27 Vt. 415. A mere promise is not a representation. Long t). Woodman, 56
Me. 49; Gage r. Lewis, 68 111. 604; Kieveking v. Litzler, 31 Ind. 13; Fen-
wick r. Grimes, 5 Cranch C. C. 439. It must be of a material fact. Clark r.
Everliart, 63 Pa. St 347; Jordan r. Picket, 78 Ala. 331; James v. HodsUeu,
47 Vt 127; Schwabacker, 99 III. 343: Winter p. Bandel, 30 Ark. 362, Saf-
ford r. Grout, 120 Mass. 20; Hall r. Johnson, 41 Mich. 286; Hale v, Phil>
brick, 47 Iowa, 217. It must be fraudulent as well as false. Cowley f.
Smith, 46 N. J. L. 380; Bokee v. Walker, 14 Pa. St 139; Endsley r. Johns,
120 111. 469. And it has been held that a guilty knowledge and an inten-
tion to deceive were essential to the plaintiff's case. Crown v. Brown, 30 Vt
707; Huber r. Wilson, 23 Pa. St 178; Terrell*. Bennett, 18 Ga. 404; Tucker
V. White, 125 Mass. 344; Zyabriskii v. Smith, 13 N. Y. 322. As to rei^kleas
statements see Fisher i>. Mellen, 103 Mass. 503; Nugent v. C. H. & I. Street
K. It Co., 2 Diso. (Ohio) 302; Einstein v. Marshall. 58 Ala. 153; Beebe r.
Knapp, 28 Mich. 53; Woodruff r. Gamer, 27 Ind. 4. The plaintiff must rely
upon the defendant's statement Runge v. Brown, 37 N. W. Rep. (Neb/i
6(50; Nye r. Merriam, 35 Vt 438: Humphrey v, Merriam, 32 Minn. 197:
Hagee r. Grossman, 31 Ind. 22,3. See, also, Nelson *>. Luling, 62 N. Y. 645;
Edick r. Crim, 10 Barb. 445; Clopton v, Cozart, 13 Sm. & M. 363; Bowman
r Carithers, 40 Ind. 90; Proctor r. McCord, 60 la, 153; Poland r. Brownell,
131 Mass. 138; Holdom r. Ayer, 110 III. 448; Ming r. Woolfolk, 116 U. S. 599.

As to the meaning of '^solvency," see McKown v. Furgason, 47 Iowa, 635;
Daniels v. Dayton, 49 Mich. 137; Einstein v. Marshall, 58 Ala. J 53.



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Lee. XXXIX.] OF PERSONAL PROPERTY. . ♦490

Lord Thurlow, in Fox v. Mackreth (a), allowed of much lati •
tnde of coDcealmeat on the part of the purchaser. The latter, ac-
cording to his opinion, would not be bo and, in negotiating for
the purchase of an estate, to disclose to the seller his knowledge
of the existence of a mine on the land, of which he knew the seller
was ignorant If the estate was purchased for a price of which
the mine formed no ingredient, he held, that a court of equity
could not set aside the sale, because there was no fraud in the
case, and the rule of nice honour must not be drawn so strictly as
to affect the general transactions of mankind. From this and
other cases it would appear, that human laws are not so perfect
as the dictates of conscience, and the sphere of morality is more
enlarged than the limits of civil jurisdiction. There are many
duties that belong to the class of imperfect obligations, which are
binding on conscience, but which human laws do not, and cannot
undertake directly to enforca But when* the aid of a court of
equity is sought, to carry into execution such a contract, then the
principles of ethics have a more extensive sway; and a purchase,
made with such a reservation of superior knowledge, would be of
too sharp a character to be aided and forwarded in its execution
by the powers of the court of chancery (6). In Turner v. Harvey (c),
relief was given in equity against a contract, where the purchaser
knew that the vendors ( who were assignees of a bankrupt) were
ignorant of a circumstance considerably increasing the value of
the property. And while it was admitted to be the general rule
that the purchaser was not bound to give the vendor information
as to the value of the property, yet it was said that very little was
sufficient to affect the application of the principle, as if a single
word be dropped tending to mislead the vendor. And though
there be cases in which a contract improvidently entered into by
a trustee will not be cancelled by the court, yet they will not lend
the aid of the court to execute it. But if a person stands in the
relation of trustee, or qua trustee to another, as agent, factor,
steward, attorney, or the like, if he would purchase of his princi-
pal or employer, any property committed to his care, he must deal
with the utmost fairness, and conceal nothing within his own
knowledge which may affect the price or value; and if he does,

(a) 2 Bro, C. C. 420. Lord Eldon to the same point, in Turner o. Harvey,
Jacobin Rep. 178.

[h) Parker r. Grant, 1 John», C% Rep. 630 .
(e) 1 Jacob*8 Rep. 169.

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* 491 OF PERSONAL PROPERTY. [Part V.

the bar^aia may be set aside (a). Bargains between tmstee and
cestui Que fru^ are viewed wi threat jealousy, and they will not be
sastai ned, un less under very unexceptionable ciFCumstances ( 6 ) . It

is a rule in equity (c), that all the material facts must
[ * 491 ] be known to both *parties, to render the agreement fair

and just in all its parts; and it is against all the princi-
ples of equity, that one party, knowing a material ingredient in
an agreement, should be permitted to suppress it, and still call
for a specific performance.**

Pothier (d) contends, that good faith and justice require that
neither party to the contract of sale should conceal facts within
his own knowledge, which the other has no means at the time of
knowing, if the facts would materially affect the value of the com-
modity. But he concludes^ in conformity with the doctrine of
Lord Thurlow, that though misrepresentation or fraud will in
validate the contract of sale, the mere concealment of material
knowledge which the one party has touching the things sold, and
which the other does not possess, may affect the conscience, but
will not destroy the contract; for that would unduly restrict the
freedom of commerce; and parties must, at their own risk, inform
themselves of the value of- the commodities they deal in (e). He
refers to the rules of morality laid down by Cicero; and he justly
considers some of them as being of too severe and elevated a char-
acter for practical application, or the cognizance of human tribu-
nals (g). The general rule on this subject (though it has its ex-

(a) Farnam v. Brooks, 9 Pick. Rep, 212.

(6) Fox V, Mackreth, 2 Bro, C. C. 400. Coles r. Thecothick, 9 Vesey, 246.
Dunbar r. Tredennick, 2 Ball dt Beaity, 314. Boyd v. Hawkins, 2 Bad. ^
Dev. Eq. Cases, 207—211, 215. See, also, infra, vol. 4, p. 438.

(c) Ellard t-. Lord Llandaff, 1 Balt<& Beatiy, 251. Buxton v. Lyster, ZAtk,



Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 82 of 108)